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8. On conclusion of recording of the evidence, accused
statement as is contemplated under Section 313 of Cr.P.C. was
recorded. Accused persons denied the incriminatory
circumstances but did not choose to examine any witness on
their behalf except marking Ex.D.1 which is the portion of
statement of Sri.K.Nagesh Kini.
9. Thereafter Learned Special Judge heard the
arguments of the parties and convicted the accused persons
and sentenced them as under:
Accused No.1
xxxxxx
Accused No.2
"The accused No.2 is sentenced to undergo RI for
two years for the offence punishable under Section 120B
of IPC and to pay a fine of Rs.10,000/- and in default of
payment of fine, to undergo SI for three months.
The accused No.2 is sentenced to undergo RI for two
years for the offence punishable under Section 420 of IPC
and to pay a fine of Rs.10,000/- and in default of payment
of fine, to undergo SI for three months.
The accused No.2 is sentenced to undergo RI for one year
for the offence punishable under Section 419 of IPC and
to pay a fine of Rs.5,000/- and in default of payment of
fine, to undergo SI for three months.
The accused No.2 is sentenced to undergo RI for four
years for the offence punishable under Section 468 of IPC
and to pay a fine of Rs.10,000/- and in default of payment
of fine, to undergo SI for three months.
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The substantive sentence of imprisonments stated above
to run concurrently, but the sentence in default of
payment of fine, in case, the fine amount is not paid to
run consecutively.
The period of detention in judicial custody, if any,
undergone by the accused Nos.1 and 2 already is given
set off under Section 428 of Cr.P.C."
10. Appeal filed by accused No.1 got dismissed as
abated as he died during pendency of appeal.
11. Being aggrieved by the same, accused No.2 has
preferred the present appeal.
12. Learned counsel for the appellant reiterating the
grounds urged in the appeal memorandum contended that
since entire loan amount has been paid to the present appellant
in a sum of Rs.25,00,000/-, no loss has occurred to the
Syndicate Bank as is alleged by the prosecution and thus,
sought for allowing the appeal.
13. He also pointed out that the allegations leveled
against the present appellant stands not established by placing
cogent and convincing evidence on record. Therefore, sought
for allowing the appeal.
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14. Alternately, he contended that in the event, this
Court upholding the order of conviction, Court may consider
setting aside the period of imprisonment by enhancing the fine
amount reasonably.
15. Per contra, learned counsel for the respondent
opposes the appeal grounds in toto.
16. He further contended that but for the active
participation of the appellant in impersonating Gulab Kanayalal
Paryani and Vinod Kanayalal Paryani and creating a loan
account based on the fixed deposit made by Gulab Kanayalal
Paryani and Vinod Kanayalal Paryani, the money would not
have been parted from the Syndicate Bank on to the names of
accused No.2 which was credited in the accounts maintained by
accused No.2 in State Bank of India and Karnataka State
Industrial Co-operative Bank Limited which was drawn by
accused No.2 and later, returned to accused No.1 who in turn
drew cheques and repaid his debtors which is established by
the prosecution by placing cogent evidence on record.
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17. Thus, there is no merit in any one of the
contentions urged on behalf of the appellant and sought for
dismissal of the appeal.
18. Insofar as alternate submission on behalf of the
appellant is concerned, learned counsel for the respondent
contended that perpetrators of the crime like the appellant
would get encouraged if any leniency is shown and sought for
dismissal of the appeal in toto.
19. Having heard the parties in detail, this Court
perused the material on record meticulously.
20. On such perusal of the material on record, following
points would arise for consideration:
1. Whether the prosecution has sufficiently established
all ingredients to attract the offences under Section
120B, 420, 419, 465 and 468 of IPC to maintain
the conviction of accused No.2?
2. Whether the appellant makes out a case that
impugned judgment is suffering from legal infirmity
or perversity and thus calls for interference?
3. Whether the sentence needs a modification?
4. What order?
REG. POINT Nos.1 AND 2:
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21. In the case on hand, admittedly accused No.1 was
the Branch Manager of Syndicate Bank, MRMC Branch,
Gulbarga at the relevant point of time. It is established that
there was a fixed deposit by Non-Resident Indians namely
Gulab Kanayalal Paryani and Vinod Kanayalal Paryani and
NREVCC receipt bearing No.379263 was not issued to them.
On the contrary another fake and forged NREVCC receipt was
kept in the name of Gulab Kanayalal Paryani and Vinod
Kanayalal Paryani and based on the original NREVCC receipt
bearing No.379263, loan of Rs.55,04,500/- was obtained by
accused No.2 impersonating Gulab Kanayalal Paryani and Vinod
Kanayalal Paryani.
22. Admittedly, Gulab Kanayalal Paryani and Vinod
Kanayalal Paryani did not visit the MRMC Branch, Gulbarga for
opening the loan account in LD No.223/1999 in a sum of
Rs.55,04,500/- on 03.11.1999. They being the Non-Resident
Indians, there is no proof that they had visited the branch. It is
accused No.2 who represented Gulab Kanayalal Paryani and
Vinod Kanayalal Paryani and signed as Gulab Kanayalal Paryani
and Vinod Kanayalal Paryani, for opening LD No.223/1999.
Proceeds from the said loan was transferred by way of Demand
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Draft in favour of M/s.Amar Data Systems Private Limited in a
sum of Rs.32,00,000/- and sum of Rs.22,50,000/- was
transferred to M/s.Sudhishanth Engineering Institute owned by
accused No.2. Out of those proceeds, sum of Rs.14,50,000/-
was drawn and was disbursed to several other people from
whom accused No.1 had borrowed the money.
23. These factors being established by the prosecution,
by placing necessary documentary evidence on record, oral
evidence of the witnesses is of not much significance as they
are only deposing about the entries in the documents. Further,
minor contradictions elicited in the oral testimony of the
prosecution witnesses, in the cross-examination, on behalf of
the appellant, did not cause any serious dent in the case of the
prosecution as the case of the prosecution is predominantly
based on entries in the books of the bank. Therefore,
contradictions elicited in the cross-examination must be treated
as minor contradictions. Sum total of the oral and
documentary evidence establishes that there was siphoning of
the money from the Syndicate Bank to the account of accused
No.2. Admittedly, accused No.2 was not the beneficiary of the
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fixed deposit bearing No.379263 in a sum of Rs.1,01,21,712-22
paisa.
24. Under such circumstances, grant of loan against the
said fixed deposit which was belonging to Gulab Kanayalal
Paryani and Vinod Kanayalal Paryani by accused No.2
impersonating Gulab Kanayalal Paryani and Vinod Kanayalal
Paryani and forging their signatures establishes all ingredients
required to attract the aforesaid offences. Therefore,
conviction of the appellant for the aforesaid offences needs to
be maintained.
25. The legal infirmity that is canvassed before the
Court on the behalf of the appellant as discussed supra, is in
the nature of contradictions in the evidence of the prosecution
witnesses which are minor in nature and did not affect the case
of the prosecution in any significant manner. Therefore, point
No.1 is answered in affirmative and point No.2 is answered in
negative even after reappreciation of the material on record.
REG.POINT No.3:
26. Having held that appellant is responsible for the
offence of conspiracy with accused No.1 and siphoning the
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money to the tune of Rs.55,04,500/-, material on record also
depicts that sum of Rs.25,00,000/- is repaid by the present
appellant to the bank and balance amount was recovered by
the bank from accused No.1, in principle, there is no pecuniary
loss that has been caused to the bank.
27. However, it is settled principles of law and requires
no emphasis that mere repayment of the loan amount or
settling the civil liability would not ipso facto result in effacing
the criminal liability as is held in the case of Gian singh v.
State of Punjab reported in (2012) 10 SCC 303.
28. Therefore, the argument that has been canvassed
on behalf of the appellant that appellant needs to be acquitted
in toto cannot be countenanced in law.
29. Admittedly, present appellant is now aged about 56
/57 years. Incident has occurred in the year 2001, having
repaid the entire amount and case on hand being an isolated
incident, as appellant is not having any criminal antecedents,
this Court is of the considered opinion that if the sentence of
imprisonment is set aside by enhancing the fine amount to sum
of Rs.2,00,000/- would meet the ends of justice more so,
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taking note of the fact that accused No.1 is dead. Accordingly,
point No.3 is answered partly in the affirmative.
REG.POINT No.4:
30. In view of the findings of this Court on point Nos.1
to 3 as above, following:
ORDER
i. Criminal appeal is allowed in part.
ii. While maintaining the conviction of the
appellant for the offence punishable under
Section 120B, 420, 419, 465 and 468 of IPC,
sentence of imprisonment ordered by the
learned Special Judge in the impugned
judgment is set aside by enhancing the fine
amount in a sum of Rs.2,00,000/- in respect of
all the aforesaid offences (exclusive of the fine
amount already imposed).
iii. Time is granted for the appellant to pay the fine
amount till 28.02.2025 failing which the
appellant shall undergo the imprisonment as
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ordered by the learned Special Judge in the
impugned judgment.
iv. Office is directed to return the Trial Court
Records with copy of this order for issue of
modified conviction warrant.
Sd/-
(V SRISHANANDA)
JUDGE
KAV
CT: BHK
